March 18, 2005





ENGROSSED

SENATE BILL No. 98

_____


DIGEST OF SB 98 (Updated March 16, 2005 2:28 pm - DI 69)



Citations Affected: IC 35-38.

Synopsis: Probation revocation. Permits a judge to order execution of all or part of a probationer's suspended sentence if the probationer violates a condition of probation. (Current law only permits the court to order execution of all of the probationer's suspended sentence.) (The introduced version of this bill was approved by the sentencing policy study committee.)

Effective: July 1, 2005.





Long, Howard
(HOUSE SPONSORS _ MESSER, CRAWFORD, FOLEY, KUZMAN)




    January 4, 2005, read first time and referred to Committee on Corrections, Criminal, and Civil Matters.
    January 13, 2005, reported favorably _ Do Pass.
    January 18, 2005, read second time, ordered engrossed.
    January 19, 2005, engrossed.
    January 25, 2005, read third time, passed. Yeas 45, nays 1.

HOUSE ACTION

    March 7, 2005, read first time and referred to Committee on Courts and Criminal Code.
    March 17, 2005, reported _ Do Pass.






March 18, 2005

First Regular Session 114th General Assembly (2005)


PRINTING CODE. Amendments: Whenever an existing statute (or a section of the Indiana Constitution) is being amended, the text of the existing provision will appear in this style type, additions will appear in this style type, and deletions will appear in this style type.
Additions: Whenever a new statutory provision is being enacted (or a new constitutional provision adopted), the text of the new provision will appear in this style type. Also, the word NEW will appear in that style type in the introductory clause of each SECTION that adds a new provision to the Indiana Code or the Indiana Constitution.
Conflict reconciliation: Text in a statute in this style type or this style type reconciles conflicts between statutes enacted by the 2004 Regular Session of the General Assembly.


ENGROSSED

SENATE BILL No. 98



    A BILL FOR AN ACT to amend the Indiana Code concerning criminal law and procedure.

Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 35-38-2-3 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2005]: Sec. 3. (a) The court may revoke a person's probation if:
        (1) the person has violated a condition of probation during the probationary period; and
        (2) the petition to revoke probation is filed during the probationary period or before the earlier of the following:
            (A) One (1) year after the termination of probation.
            (B) Forty-five (45) days after the state receives notice of the violation.
    (b) When a petition is filed charging a violation of a condition of probation, the court may:
        (1) order a summons to be issued to the person to appear; or
        (2) order a warrant for the person's arrest if there is a risk of the person's fleeing the jurisdiction or causing harm to others.
    (c) The issuance of a summons or warrant tolls the period of probation until the final determination of the charge.


    (d) The court shall conduct a hearing concerning the alleged violation. The court may admit the person to bail pending the hearing.
    (e) The state must prove the violation by a preponderance of the evidence. The evidence shall be presented in open court. The person is entitled to confrontation, cross-examination, and representation by counsel.
    (f) Probation may not be revoked for failure to comply with conditions of a sentence that imposes financial obligations on the person unless the person recklessly, knowingly, or intentionally fails to pay.
    (g) If the court finds that the person has violated a condition at any time before termination of the period, and the petition to revoke is filed within the probationary period, the court may:
        (1) continue the person on probation, with or without modifying or enlarging the conditions;
        (2) extend the person's probationary period for not more than one (1) year beyond the original probationary period; or
        (3) order execution of all or part of the sentence that was suspended at the time of initial sentencing.
    (h) If the court finds that the person has violated a condition of home detention at any time before termination of the period, and the petition to revoke probation is filed within the probationary period, the court shall:
        (1) order a sanction as set forth in subsection (g); and
        (2) provide credit for time served as set forth under IC 35-38-2.5-5.
    (i) If the court finds that the person has violated a condition during any time before the termination of the period, and the petition is filed under subsection (a) after the probationary period has expired, the court may:
        (1) reinstate the person's probationary period, with or without enlarging the conditions, if the sum of the length of the original probationary period and the reinstated probationary period does not exceed the length of the maximum sentence allowable for the offense that is the basis of the probation; or
        (2) order execution of all or part of the sentence that was suspended at the time of the initial sentencing.
    (j) If the court finds that the person has violated a condition of home detention during any time before termination of the period, and the petition is filed under subsection (a) after the probation period has expired, the court shall:
        (1) order a sanction as set forth in subsection (i); and
        (2) provide credit for time served as set forth under IC 35-38-2.5-5.
    (k) A judgment revoking probation is a final appealable order.
    (l) Failure to pay fines or costs required as a condition of probation may not be the sole basis for commitment to the department of correction.
    (m) Failure to pay fees or costs assessed against a person under IC 33-40-3-6, IC 33-37-2-3(c), or IC 35-33-7-6 is not grounds for revocation of probation.